In light of a new county policy that will delay the prosecution of marijuana cases for months, defense attorneys representing people charged with possession in Galveston County might start recommending that more people challenge their arrests in court.

The move could force county prosecutors to decide whether to continually ask local judges for delays and extensions in cases that usually don’t take such efforts or to dismiss the case entirely.

“I think we have to do that for our clients,” Jonathan Zendeh Del, a Galveston defense attorney, said of plans to challenge all pending marijuana cases. “We have to utilize the new law and what it allows for.”

Attorneys might advise clients charged with possession of small amounts of marijuana to go to trial rather than plead no contest and pay the fine, for example.

Galveston District Attorney Jack Roady on Monday sent a letter to local police departments and agencies, announcing a policy change in the way his office prosecutes marijuana cases.

Because of a new state law that defines marijuana by the amount of THC it contains, the district attorney’s office can only prosecute marijuana cases after receiving specialized test results.

The new law changes how police and prosecutors must proceed with all marijuana cases, no matter the amount, but most of the changes announced so far deal with misdemeanor infractions over small amounts.

The Texas Department of Public Safety, which would normally conduct the identification tests, is not equipped to test samples of marijuana to the levels defined by state law, officials said. It might be as long as a year until the state has the equipment and procedures necessary to determine whether a sample contains more than the 0.3 percent THC allowed under the new state law.

Until then, Roady could not prosecute people for possession of marijuana, he said.

The Galveston County District Attorney’s Office is not alone in facing the issues caused by the law change. But Galveston County is different from some large counties in the way it plans to handle marijuana cases until testing can resume.

On Wednesday, the district attorneys in Harris, Fort Bend, Bexar and Nueces Counties announced they would not accept misdemeanor marijuana charges without a lab test.

Some counties have also begun dismissing misdemeanor charges currently in the court system.

Roady’s letter took a different tact, urging police departments to continue to collect suspected drug samples and filing reports, and promising to file “all charges” on marijuana cases once testing could be completed.

For people suspected of misdemeanor marijuana possession, the district attorney has up to two years to file charges after a report is made, Zendeh Del said.

The question the local justice system will face is whether to carry cases forward.

“I think the approach he is taking is reasonable,” Zendeh Del said. “It’s not as reasonable as what Harris County is doing.”

Zendeh Del’s firm is representing about 30 people on marijuana cases, he said. Because of the new policy, he planned to take all of the cases to trial, he said.

“We’re going to get them up to trial, and it’s going to be really interesting where the office is going to be able to say ‘this is marijuana and not hemp,’” he said.

He expected that other defense attorneys would make the same calculation.

“I think anybody with a head on their shoulders is going to challenge every case,” he said.

John Wayne Ferguson: 409-683-5226; or on Twitter @johnwferguson.


(22) comments

Robert Braeking

"letter took a different tact, ....." A common mistake Mr Ferguson, but the word for which you were looking is tack. - a change in direction typically by a boat under sail when working upwind.

Bailey Jones

Why are we even prosecuting citizens for something that's legal in 11 states? Decriminalized or legal for medical use in 33 states? Legalization is inevitable. How much more damage will the state inflict on its citizenry before that happens?

Carlos Ponce

"Why are we even prosecuting citizens for something that's legal in 11 states?" Check on those 11 and see how well that has worked for them. We now have a new standard for "going to pot". The modest gains in tax revenue are offset by much negative. The criminal element involved when marijuana was illegal have moved on to stronger more lethal drugs. " Legalization is inevitable." Potheads will claim so.[rolleyes]

Bailey Jones

You can't stop the progress of individual liberty, Carlos, though I know it's in your nature to try.

Carlos Ponce

That's not "progress", Bailey. I've seen many students lives ruined by marijuana. But I guess I cannot convince a pothead on the evils of today's marijuana.[innocent]

Don Schlessinger

Seems to me now might be the time for Texas to take a hard look at the price of prosecuting people for small amounts of pot. Why even spend the money for the equipment when the day is coming for Texans to vote on legalization of the marijuana? Let's do it now and start making money from taxing the drug instead of spending money for prosecuting small amounts.

Carlos Ponce

The overwhelming evidence against legalization from other states will prevent that from happening, Don.

Steve Fouga

You need to read some neutral sources, Carlos. The evidence is overwhelmingly MIXED, not overwhelmingly against. In some areas, crime is up; in others it is down. Some types of crime are affected, others not. In some states, marijuana use among youths is up; in others it's down. Some states have met their tax projections; others have not; yet others have exceeded them. I don't think many would say that legalization is overwhelmingly beneficial, either. But in America we tend not to deny freedoms just because they aren't overwhelmingly beneficial. In fact, we bend over backward to preserve freedoms even when they are shown to be overwhelmingly deleterious. Study up, Carlos, and allow your mind to be expanded!

Carlos Ponce

Read all the sources including those from Colorado newspapers. Only a pothead would deny the bad effects of today's marijuana.

Bailey Jones

Steve, only a pothead would believe that Carlos can be swayed by facts. Every state that has legalized pot has the option to re-criminalize it. None have. Case closed.

Carlos Ponce

"Every state that has legalized pot has the option to re-criminalize it." The Tobacco Industry is trying to get it legalized in all states and continue in states where it has been. They are pouring MILLIONS into the effort. No need to wonder why. We all know how "honest" they wee when it came to tobacco.[rolleyes]

Steve Fouga

Well, you missed my point, which is that in America, "bad effects" are usually not reason enough to limit personal freedom. Furthermore, in places where marijuana is legal, the effects haven't turned out all that bad.

Carlos Ponce

" Furthermore, in places where marijuana is legal, the effects haven't turned out all that bad." Suuuuure, Steve.[rolleyes]

Bailey Jones

It sounds like Carlos is proposing a Nanny State where the government needs to protect people from the consequences of their own bad decisions. Which I've always been told is an inevitable byproduct of demon-ocrat liberalism. Stay in your lane, Carlos!!!

Carlos Ponce

I'm in my lane, Bailey. No "nanny state" but there are some things best left on the "controlled" list. Today's marijuana is bad, should never have been legalized. We're going to wind up with a mind numbed society - set up for Liberal takeover. The Bible warns of drugs - "pharmakeia" in the vernacular Greek of the New Testament. Notice its semblance to our word "pharmacy". But the word was translated as "sorcery" or "witchcraft". Since you are not a believer the translation does not bother you but to believers, we keep away from "drugs". I'll never understand the need for some to get "high" with drugs. It is not in my nature. It is contrary to the Christian religion.

Carlos Ponce

"Underage marijuana use and impaired driving common in Colorado and Washington where marijuana is legalized"

Bailey Jones

I would only use it medicinally, Carlos. I hear it is quite effective for treating the pain and depression associated with my TDS.

Carlos Ponce

The medicinal benefits are from the CBD which is lessening in quantity in today's marijuana. Use hemp or CBD oil instead. See "7 Benefits and Uses of CBD Oil (Plus Side Effects)"

Ron Shelby

Good for Roady. It may take a while to get to them but don't let local defense lawyers think they have law enforcement over a barrel. They will be doing their clients a disservice by suggesting they not plead guilty and pay the fine. An open/pending case for drug possession will make it difficult for finding a job and many other things. They will essentially be placing their clients in a legal "limbo". That will be their own doing.

Charlene Adams

As long as the person has not been convinced it should not affect finding a job. It would be worse for them to plead guilty which would show up in a background check.

Carlos Ponce

Charlene, many jobs require drug testing. Conviction not necessary to prevent granting a job - just a "positive" for drug use upon testing.

Charlene Adams

I meant convicted.

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